Allahabad High Court
State Of U.P. And 3 Ors. vs Brij Lal Tiwari on 10 February, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- SPECIAL APPEAL No. - 774 of 2014 Appellant :- State Of U.P. And 3 Ors. Respondent :- Brij Lal Tiwari Counsel for Appellant :- C.S.C. Counsel for Respondent :- Dinesh Mishra Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard learned Additional Chief Standing Counsel for appellant and perused the record.
2. This Intra-Court appeal under Chapter-VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment and order dated 18th November, 2013 passed by learned Single Judge in Writ Petition No.11532 of 2001 (Brij Lal Tiwari Vs. State of U.P. and others) whereby learned Single Judge has allowed aforesaid writ petition holding that termination order dated 28.02.2001 passed by respondent no.2, Commissioner, Trade Tax, Lucknow, U.P. is vitiated in law. He has further directed Appellants to consider regularization of petitioner-respondent in the light of Government Order dated 21.12.2001.
3. Learned Additional Chief Standing Counsel contended that petitioner-respondent was a daily wage employee having been engaged pursuant to order dated 03.06.1991 passed by Assistant Commissioner (Admin.), Trade Tax Varanasi Region, Varanasi. Since his service was no longer required, therefore his service was terminated vide order dated 28th February, 2001, which is quoted herein-below:
**vkns'k Jh c`tyky frokjh iq= Jh lhrkjke frokjh xzke eksgfj;k iksLV vesBh ftyk lqYrkuiqj dks vflLVsV dfe'uj ¼'kkldh;½ fcdzh dj okjk.klh ds vkns'k la[;k 605@l0vk0ok0@rhu&3fu;qfDr@fcdzh dj] fnukad 3-6-91 ls prqFkZ Js.kh nSfud osruHkksxh dehZ ds :i esa bl 'krZ ds lkFk fu;qfDr iznku dh x;h Fkh fd Hkfo"; esa lsod ds in ij fu;fer fu;qfDr gks tkus ij mudh lsok;s Lor% lekIr gks tk;sxhA foHkkx esa prqFkZ Js.kh ds inks ij fu;fer fu;qfDr;ka iwoZ gks pqdh gS ,oa orZeku esa ifj{ks= esa prqFkZ Js.kh dh dqy tu'kfDr iw.kZ gS ,oa dksbZ fjfDr;ka miyC/k ugha gS orZeku esa foHkkx dks Jh c`tyky frokjh nSfud osruHkksxh dehZ dh dksbZ vko';drk ugha gSA Jh c`t yky frokjh }kjk vius gLrk{kj ls lh/ks izeq[k lfpo] mRrj izns'k 'kklu dks i= Hkstk x;k] ftlds lkFk lyQkl dh xksyh Hkh Hksth x;h ftls [kkdj buds }kjk viuk thou lekIr djus dk mYys[k fd;k x;k gSA bl izdkj buds }kjk ljdkjh deZpkjh vkpj.k fu;ekoyh dk iw.kZ:is.k mYya?ku fd;k x;k gSA Jh c`t yky frokjh iq= Jh lhrkjke frokjh nSfud osru Hkksxh dehZ dh vko';drk foHkkx esa fu;fer fu;qfDr gks tkus ds i'pkr ugha jg x;h gS rFkk Jh frokjh dk vkpj.k Hkh vuq'kklughurk ls iw.kZ ik;k x;kA mijksDr rF;ksa ds ifjizs{; esa rkRdkfyd izHkko ls iwoZ esa tkjh fu;qDr i= dks fujLr djrs gq, Jh c`t yky frokjh iq= lhrkjke frokjh ls nSfud osru Hkksxh dehZ ds :i esa lsok;sa u fy;s tkus dk vkns'k fn;k tkrk gSA** " Order Shri Brijalal Tiwari s/o Shri Sitaram Tiwari, Village- Mohariya, Post - Amethi, District - Sultanpur had been appointed on class - IV post as daily wages employee vide order no. 605/Sa. Aaa. Va/III-3Niyukti/Sale Tax dated 03.06.91 of Assistant Commissioner (Administrative) Sale Tax, with a condition that his services will automatically come to an end in future in the event of permanent appointment on the post of peon.
Regular appointments on the posts of class-IV have already been completed, and at present total sanctioned strength of class IV posts in the Range is complete, and no vacancy is available. Shri Brijlal Tiwari, daily wages employee, is not required by the department at present.
A letter directly sent by Shri Brijlal Tiwari to the Principal Secretary, Government of Uttar Pradesh with a tablet of Sulphas, mentioning which he has stated to get his life ended by consuming the same. In this way, he has grossly violated the Government Servant's Conduct rules.
After regular appointment in the department, Shri Brijlal Tiwari s/o Shri Sitaram Tiwari, daily wages employee, is not required, and Shri Tiwari's conduct has also been indisciplined.
Considering the aforesaid facts, previous appointment letter issued to Shri Brijlal Tiwari s/o Sitaram Tiwari is cancelled with immediate effect, and it is ordered not to take his services as daily wages employee." *
4. From a perusal of termination order dated 28th February, 2001, it is evident that termination of petitioner-respondent was on account of misconduct which is alleged to be a violation of U.P. Government Servants Conduct Rules, 1956 (hereinafter referred to as Rules, 1956). That being so, without holding department enquiry petitioner-respondent could not have been terminated even if he was a daily wage employee inasmuch as where termination is stigmatic, such termination order without holding departmental enquiry is in violation of Article 311 of Constitution of India and illegal.
5. Learned Additional Chief Standing Standing Counsel could not dispute that termination order was passed by referring to the alleged misconduct but no department enquiry was undertaken.
6. In these circumstances, the judgement dated 18.11.2013 passed by learned Single Judge setting aside order of termination cannot be bad or erroneous. We do not find any patent error in judgement and order dated 18.11.2013 passed by learned Single Judge.
7. Appeal lacks merit. Dismissed.
Order Date :- 10.2.2020 YK